Bound by civil union and marriage? Legal consequences can be real ... and weird

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Many same-sex Colorado couples are now more married than their heterosexual peers — or something like that.

Take Lisa and Shawna Kemppainen. Lisa, a psychotherapist, and Shawna, who is now the executive director of Urban Peak Colorado Springs, met seven years ago.

Lisa had always considered herself straight. When she met Shawna, she was raising a young son in an unhappy marriage. It wasn't like she suddenly realized she was a lesbian — even now, she says she wouldn't use that term to describe herself. She simply fell in love with Shawna. It was real, and she was ready for it.

"I couldn't believe how I felt physically and emotionally when I was around her," Lisa remembers.

Within a few weeks, Lisa filed for divorce, and she and her son moved in with Shawna. But Lisa's first same-sex relationship came with a jarring realization. At the time, she and Shawna couldn't get married or receive any legal recognition of their relationship. That meant Shawna had no right to direct medical treatments of Lisa's multiple sclerosis, for which she was hospitalized regularly.

Shawna, an activist, had always wanted to hold out for marriage, for full equality. But when civil unions became legal in 2013, she changed her mind.

"Because of my illness," Lisa says, "her opinion changed because she needed to have any legal rights she could get."

On July 7, 2013, Lisa and Shawna entered into a civil union during an intimate ceremony at a friend's home. Lisa wore a vintage, handmade Italian dress. Shawna wore a suit. A friend shot photos.

But after same-sex marriage became legal in Colorado in late 2014, and then the U.S. Supreme Court made it the law nationwide in June, Lisa and Shawna decided it was time for an upgrade. On their two-year anniversary, they headed to the courthouse and married.

"We thought, what better thing to do on our anniversary than go pick up our other 1,200 rights?" Lisa says.

Like many same-sex couples, Lisa and Shawna never thought about their pre-existing civil union.

"I was under the assumption that we didn't need to dissolve the civil union," Lisa says, "because the marriage kind of trumped it."

And yet, it doesn't.

Democratic State Sen. Pat Steadman of Denver explains that many same-sex couples in Colorado are simply layering marriage over a civil union. And, really, there's no problem with that unless they choose to end their marriage. But if they divorce, a civil union and a marriage are considered two separate partnerships — each of which must be settled and dissolved by the courts.

That's just one of the many problems that now exist with civil unions. Another: While Steadman is unaware of anyone actually doing this, a person in Colorado can legally have a civil union with one person and be married to someone else.

And another: No law currently clarifies that a couple with a civil union is not common-law married, which could create some sticky situations in the courts for couples who don't want to be married.

"There are people that have a civil union today that have no intention of marrying," Steadman says. "So civil union remains a valid status, but it's probably going to fall into obscurity eventually."

In some ways, it already has. Asked how many states still offer civil unions, Steadman says he thinks there are three, including Colorado. Laura "Pinky" Reinsch, spokesperson for the LGBT advocacy group One Colorado, thinks there may be four.

In other words, it's rare. And even in Colorado, it seems nearly forgotten. In 2013, when only civil unions were available to same-sex couples, 1,912 civil unions were established statewide. In 2014, when same-sex marriage became available in certain counties starting in June and all counties followed suit in October, just 489 civil unions were authorized, compared to 1,487 same-sex marriages. So far in 2015, preliminary numbers through June show just 15 civil unions have been established statewide, along with 719 same-sex marriages.

In El Paso County, according to Clerk and Recorder spokesperson Ryan Parsell, it's a similar story. In 2013, the county claimed 257 civil unions. In 2014, there were 75. This year there have been just three so far — two of them involving heterosexual couples.

In the last legislative session, Steadman sponsored Senate Bill 15-016, which was assigned to the Republican-led Senate Committee on State, Veterans, & Military Affairs.

"I'm assuming the subject matter is the reason it was defeated with no explanation," Steadman says.

"I mean, literally, they said nothing before voting no."

The bill would have fixed many of the problems with civil unions. For instance, if a couple with a civil union married, it would have merged the civil union into the marriage. The bill also would have made it bigamy to be married to one person while having a civil union with another. Additionally, it would have declared that a civil union is not a marriage, or even a common-law marriage.

Steadman says he plans to reintroduce the bill next year, with a few changes. In the meantime, couples like the Kemppainens will remain tightly bound — unless they choose to dissolve their civil unions.

"Who knew?" says Lisa. "We didn't have anything two years ago and now we have a double whammy."